Last month, I wrote about the interaction between 47 USC 230 and FRCP 65. FRCP 65 says that anyone acting in concert with a litigant is obligated to honor an injunction against the litigant. 47 USC 230 says that websites can’t be liable for user content. So, if a user is ordered to take down content he/she publishes on a third party website, must the publishing website comply with the order per FRCP 65, or it is free to ignore the injunction due to 47 USC 230?

To be fair, this issue only arises when a website won’t voluntarily remove user content. As we know, many websites instantly fold when sent a nastygram, irrespective of 47 USC 230’s protection, and even those that don’t usually will cheerily comply with a court order. So to encounter the problem, a website would need an absolute no-takedown policy–even if the user requests the takedown, and even in the face of a court order against the user. Few websites have such absolute policies.

The Ripoff Report is one of those websites, however, and they ran into this issue recently. An individual posted allegedly defamatory remarks about the plaintiffs on Facebook, MySpace, complaintsboard, Ripoff Report and other websites. I believe these are the posts at issue (1, 2)–definitely not nice postings if untrue, and as usual for Ripoff Report, they showed up as top search results in Google (in case you’re wondering, I nofollowed my links). The plaintiffs got a default judgment against the poster. The judgment included a takedown order, which the plaintiffs presented to Ripoff Report and the other websites. All of the other websites complied with the takedown order, but the Ripoff Report refused. Instead, the Ripoff Report argued (among other things) that it is not acting in concert with the poster and 47 USC 230 protects its publication decisions.

Surprisingly (to me), the judge agreed with the Ripoff Report. The judge skirted the 230 issue, instead concluding that Ripoff Report’s relationship to the user is too “tenuous” (by entering into a user agreement for content publication) to constitute “acting in concert” under FRCP 65.

The court expressly acknowledges that its ruling means that defamatory content could be categorically immune from legal challenge: “The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view.” Although this is the right doctrinal result, the normative issues are still gnawing at me. I’m troubled that online content could be categorically off-limits from compelled takedown based on a service provider’s choices. In some circumstances, continued publication may not be the right result.

UPDATE: Comments from Nate Anderson at Ars Technica (including a more thorough recitation of the case’s factual background) and Ben Sheffner (including links to many of the source materials in the case). It’s crucial to understand that the judge’s ruling turned solely on a statutory interpretation of FRCP 65 and not on how 47 USC 230 might interact with FRCP 65. So, in that sense, 230 is irrelevant to the question at hand. At the same time, as Sheffner notes, that interaction becomes relevant only because 230 bars a claim against the service provider.

Also, as much as I know people enjoy beating up on Ripoff Report, we should not forget that an integral part of this issue is Google’s remarkably favorable indexing of Ripoff Report pages.